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TMI Blog2018 (10) TMI 692X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod prior to 10.5.2008, is not acceptable, since the depot of manufacturer assessee who is M/s. Hindustan Petroleum Corpn. Ltd. in this case, is only an extension of the manufacturer and therefore, the provisions of section 11D are very much applicable on the extended arm of the manufacturer assessee, i.e. the depot of such assessee - provisions of section 11D even prior to 10.5.2008 are applicable in case of appellant assessee and they are legally bound to deposit back the excess amount collected by them from their customers in the name of Central Excise duty. Another case of assessee is that they have returned back the excess amount collected in the name of Central Excise duty from their customers and therefore, provisions of section 11D are not relevant to demand the same amount from them - Held that:- A perusal of the credit note makes it clear that a credit of cenvat difference has been given back by them for a period April to June, 2009. But it is not a refund of excess amount collected by them rather for lack of evidence the possibility cannot be ruled out that buyer may have taken the credit of these cenvat difference in their books of accounts and might have used them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lected by them claiming the same as Central Excise duty under section 11D on the following grounds: (i) It has been contended by learned advocate that the provisions of section 11D of Central Excise Act, 1944 has been amended since 10.5.2008 wherein any person who collects an amount in excess of Central Excise duty need to deposit the same with the Central Government. However, before the amendment of section 11D, the provisions of this section were relevant only with regard to the manufacturer of excisable goods and since the appellant is only a depot, and not being manufacturer, the relevant provisions of section 11D are applicable only after 10.5.2008. It has therefore, been prayed by the learned advocate that the demand prior to 10.5.2008 in the show cause notice dated 1.5.2012 need to be dropped on this very ground. With regard to the post 10.5.2008 demand is concerned, it has been submitted that the excess amount collected by them has been returned to the buyers of their excisable product in the form of credit notes issued by them to various customers and therefore, the excess amount collected has actually been returned back to the customers. With regard to the above submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d advocate claiming to prove that excess amount collected from customers have been paid by them is actually not the payment of excess amount rather they have authorised the customers to avail cenvat credit of excess amount paid by them to the appellant-assessee depot. Accordingly, the learned DR has contested the order in appeal. 4. We have heard both the sides and have perused the record of appeal. 5. It is admitted fact that appellant assessee depot is primarily an extension of M/s. HPCL and they have admittedly collected certain amount in the name of Central Excise duty in excess of the amount of excise duty paid by them at the time of clearance of various excisable goods to the appellant assessee depot. The basic ground on which the learned advocate has tried to defend themselves from depositing back the excess amount collected by them under section 11D of Central Excise Act, is primarily two fold. Firstly, that the provisions of section 11D of Central Excise Act, 1944 are not applicable in their case for a period prior to 10.5.2008. Secondly, the excess amount collected by them in the name of Central Excise duty has already been returned back by them to their customers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the extended arm of the manufacturer assessee, i.e. the depot of such assessee. It will be relevant to mention the definition of place of removal which is provided under the Section 4 of the Central Excise Act, 1944 reads as under:- place of removal means (i) A factory or any other place or premises of production or manufacture of the excisable goods; (ii) A warehouse or any other place or premises wherein the excisable goods have been permitted to be deposited without [payment of duty] (iii) A depot, premises of a consignment agent or any other place or premises from where the excisable goods are to be sold after their clearances from the factory. 7. Thus, we find that the original manufacturer assessee had an option to clear his dutiable goods from their depot on payment of duty, however, same has been cleared from the factory gate and just because the depot has taken a separate registration as a first stage dealer does not mean that they are not part and parcel of manufacturer assessee namely M/s. Hindustan Petroleum Corporation Ltd. 8. Thus in view of the above, we feel that provisions of section 11D even prior to 10.5.2008 are applicable in case of app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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